Karnataka High Court
Sri G Nagaraja vs Sri G Manjunatha on 28 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:8284
RSA No. 1223 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1223 OF 2021 (PAR)
BETWEEN:
SRI G NAGARAJA
S/O LATE PAPANNA
AGED ABOUT 57 YEARS,
R/AT KAIWARA VILLAGE
KAIWARA HOBLI AND POST,
KAIWARA GRAMA PANCHAYATH
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT
...APPELLANT
(BY SRI. SHIVASHANKAR K.,ADVOCATE)
AND:
Digitally
signed by
SUMA B N 1. SRI G. MANJUNATHA
Location: S/O LATE PAPANNA
High Court of
Karnataka AGED ABOUT 41 YEARS,
2. SRI G VISWANATHA
S/O LATE PAPANNA
AGED ABOUT 47 YEARS
R/AT KAIWARA VILLAGE
KAIWARA HOBLI AND POST
KAIWARA GRAMA PANCHAYATH
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT.
-2-
NC: 2024:KHC:8284
RSA No. 1223 of 2021
3. SMT VIJAYAMMA
W/O B M KRISHNA GOWDA
AGED ABOUT 42 YEARS,
R/AT BANAHALLI VILLAGE
KAIWARA HOBLI
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT
...RESPONDENTS
(BY SRI. GANGI REDDY B V.,ADVOCATE FOR R1;
NOTICE TO R3 SERVED AND UNREPRESENTED.
NOTICE TO R2 UNSERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 15.06.2019
PASSED IN RA.No.30/2017 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHICKBALLAPURA, SITTING AT CHINTAMANI, DISMISSING THE
APPEAL AND CONFIRMING THE ORDER DATED 09.01.2017
PASSED IN FDP No.07/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHINTAMANI, ALLOWING THE
PETITION WITH COST.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is admitted today, with the
consent of the learned counsel for the parties, matter is
NC: 2024:KHC:8284
taken up for final disposal as the issue involved in this
matter falls in a narrow compass.
2. There is no dispute of the fact that suit in
O.S.No.217/2007 was filed by the plaintiff/respondent
No.1 for relief of partition and separate possession in
respect of two items of the suit schedule property namely,
(1) land bearing Sy.No.417 an extent of 3 acres 7 guntas
and (2) Janzer No.160, property bearing No.465 consisting
of residential house measuring 45 X 261/2 feet and vacant
space measuring 33 X 28 ft., situated at Kaiwara village,
Kiawara Hobli, Chintamani Taluk, before the Senior Civil
Judge & JMFC, Chintamani (hereinafter referred to as 'Trial
Court' for short). Preliminary decree was passed in the
said suit on 10.07.2012. That seeking implementation of
the said preliminary decree, plaintiff/respondent No.1
initiated final decree proceedings in FDP No.7/2013 in
which FDP Court vide order dated 03.04.2014 has
appointed Taluka Surveyor of Chintamani Taluk as a Court
Commissioner to effect the division of item No.1 of suit
NC: 2024:KHC:8284
schedule property being landed property as per
preliminary decree passed in the said O.S.No.217/2007.
Thereafter, by another order dated 09.06.2014 the FDP
Court appointed an Advocate Commissioner to divide the
item No.2 of the suit schedule property being the house
property.
3. In furtherance thereof, Taluka Surveyor has
submitted a report which reads as under;
WÀ£À £ÁåAiÀiÁ¢Ã±ÀgÀÄ ¹«¯ï £ÁåAiÀiÁ®AiÀÄ »jAiÀıÉæÃt aAvÁªÀÄtÂ.
C¸À®ÄzÁzÀ ¸ÀASÉå:217/2007
J¥sïr¦-7/2023
ªÁ¢: ªÀÄAdÄ£ÁxÀ
«gÀÄ
¥ÀæwªÁ¢UÀ¼ÀÄ : f. £ÁUÀgÁeï ªÀÄvÀÄÛ EvÀgÉ
«µÀAiÀÄ : aAvÁªÀÄt vÁ®ÆèPÀÄ PÉʪÁgÀ ºÉÆç½, PÉʪÁgÀ UÁæªÀÄzÀ jÃ||¸À||£ÀA 417 gÀ
03.07 UÀÄAmÉ ¥ÀæzÉñÀzÀ 0.7 UÀÄAmÉAiÀÄ°ègÀĪÀ ªÀÄ£É zÀ£ÀzÀ PÉÆnÖUÉ ªÀÄvÀÄÛ ¥ÀA¥Àĺ˸ï£À°è
ªÁ¢AiÀÄ zÁªÁA±ÀzÀ 1/4 ¨sÁUÀzÀ C¼ÀvÉ ªÀiÁrgÀĪÀ §UÉÎ.
G¯ÉèÃR: vÀªÀÄä £ÁåAiÀiÁ®AiÀÄzÀ O.S.No.217/2007 FDP No.7/2013
PÉʪÁgÀ ºÉÆç½ aAvÁªÀÄt vÁ®ÆèPÀÄ PÉʪÁgÀ UÁæªÀÄzÀ j||¸À||£ÀA 417 gÀ «¹ÛtðzÀ°è
03.07 UÀÄAmÉ ¥ÀæzÉñÀzÀ 0.7 UÀÄAmÉ d«Ää£À°ègÀĪÀ ªÀÄ£É ªÀÄvÀÄÛ zÀ£ÀUÀ¼À PÉÆnÖUÉ ªÀÄvÀÄÛ
¥ÀA¥Àĺ˸ïUÀ¼À°è EgÀĪÀ ªÁ¢AiÀÄ 1/4 ¨sÁUÀzÀ C¼ÀvÉ ªÀiÁrgÀĪÀ §UÉÎ £À£ßÀ £ÀÄß
£ÁåAiÀiÁ®AiÀÄzÀ PÀ«ÄõÀ£Àgï DV £ÉëĹzÀÝ £Á£ÀÄ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ½UÉ
ªÀÄÄAavÀªÁV £ÉÆÃn¸ï ¤Ãr ¤UÀ¢¥Àr¹zÀ ¢£ÁAPÀzÀAzÀÄ C¼ÀvÉ PÉ®¸À ¤ªÀð»¸ÀÄwÛzÀÝ
¥ÀæwªÁ¢U¼ÁzÀ f. £ÁUÀgÁeï ©£ï ¥Á¥ÀtÚ, «dAiÀĪÀÄä ©£ï PÀȵÉÚÃUËqÀ «±Àé£ÁxÀ ©£ï
¯ÉÃmï ¥Á¥ÀtÚgÀªÀgÀÄUÀ¼ÀÄ £ÉÆÃn¸À£ÀÄß eÁj ªÀiÁrPÉÆArgÀĪÀÅ¢®è ºÁUÀÆ C¼ÀvÉ ªÉÃ¼É ¸ÀºÀ
ºÁdjgÀĪÀÅ¢®è. DzÀÝjAzÀ ¸ÀzÀj ¥ÀæwªÁ¢UÀ¼À 1/4 »¸ÉìAiÀÄ£ÀÄß C¼ÀvÉ ªÀiÁrgÀĪÀÅ¢®è
ªÁ¢AiÀÄ 1/4 »¸ÉìAiÀÄ£ÀÄß C¼ÀvÉ ªÀiÁrgÀÄvÉÛÃ£É CzÀgÀAvÉ £ÀPÉë vÀAiÀiÁj¹ £ÁåAiÀiÁ®AiÀÄPÉÌ
¸À°è¹PÉÆArgÀÄvÉÛãÉ.
vÀªÀÄä «±Áé¹,
vÁ®ÆèPÀÄ ¸ÀªÉðAiÀÄgï/PÉÆÃmïð PÀ«ÄõÀ£Àgï
vÁ®ÆèPÀÄ PÀZÉÃj aAvÁªÀÄtÂ.
NC: 2024:KHC:8284
A sketch is also furnished along with said report.
4. The advocate Commissioner who was appointed
to divide the house property has also filed a report which
reads as under;
WÀ£À £ÁåAiÀiÁ¢Ã±ÀgÀÄ
¹Ã¤AiÀÄgï ¹«¯ï £ÁåAiÀiÁ®AiÀÄ ªÀÄvÀÄÛ
eÉ.JA.J¥sï.¹. £ÁåAiÀÄ®AiÀÄ, aAvÁªÀÄtÂ.
ªÀiÁ£ÀågÉÃ,
«µÀAiÀÄ : aAvÁªÀÄt vÁ®ÆèPÀÄ PÉʪÁgÀ ºÉÆç½ PÉʪÁgÀ UÁæªÀÄzÀ jÃ||¸À||£ÀA 417
gÀ «¹ÛtðzÀ°è 1/4 ¨sÁUÀzÀPÉë ¥ÀæzÉñÀÌPÉ §gÀvÀPÀÌ «¹ÛtðªÀ£ÀÄß C¼ÀvÉ ªÀiÁqÀvÀPÀÌ §UÉÎ.
G¯ÉèÃR: vÀªÀÄä £ÁåAiÀÄ®AiÀÄzÀ O.S.No.217/2007, FDP No.7/2013.
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ aAvÁªÀÄt vÁ®ÆèPÄÀ PÉʪÁgÀ ºÉÆç½
PÉʪÁgÀ UÁæªÀÄ j||¸À||£ÀA 417 gÀ «¹ÛtðzÀ°è 1/4 ¨sÁUÀzÀµÀÄÖ ¥ÀæzÉñÀªÀÅ ªÁ¢UÀ½UÉ
ªÉÄîÌAqÀ G¯ÉèÃRzÀ°è £ÀªÀÄÆ¢¹gÀvÀPÀÌ O.S.No.217/2007 gÀAvÉ rQæ
DVzÀÄÝ ¸ÀzÀj 1/4 ¨sÁUÀzÀµÀÄÖ ¥ÀæzÉñÀPÉÌ §gÀvÀPÀÌ «¹ÛtðªÀ£ÀÄß C¼ÀvÉ ªÀiÁqÀvÀPÀÌ
§UÉÎ F.D.P.No.7/2013 gÀAvÉ £À£ÀߣÀÄß PÉÆÃmïð PÀ«ÄµÀ£Àgï DV £ÉëĹzÀ
ªÉÄÃgÉUÉ F §UÉÎ £ÀªÀÄä ±ÁSÉAiÀÄ°ègÀvÀPÀÌ ¸ÀA§AzsÀ¥l
À Ö ¸ÀªÉð ªÀÄÆ® zÁR¯ÉUÀ¼À£ÀÄß
¥ÀqÉzÀÄ £ÁåAiÀÄ®AiÀÄzÀ rQæ DzÉñÀzÀAvÉ ¹¯ïÌjðAUïºË¸ï, ¥ÀA¥ÀÄ ºË¸ï ªÀÄvÀÄÛ
PÁål¯ï ±ÉqïUÀ½gÀÄvÀÛªÉ. MlÄÖ 0-07 ¥ÀæzÉñÀªÀ£ÀÄß ©lÄÖ G½zÀ «¹ÛtðzÀ°è 1/4
(£Á¯ÁÌ£ÉMAzÀÄ) ¨sÁUÀPÉÌ §gÀĪÀ 0-30 ¥ÀæzÉñÀªÀ£ÀÄß C¼ÀvÉ ªÀiÁrgÀÄvÉÛ.
£ÁåAiÀiÁ®AiÀÄzÀ rQæ DzÉñÀzÀAvÉ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ½UÉ ªÀÄÄAavÀªÁV
£ÉÆÃnÃ¸ï ¤Ãr ¤UÀ¢¥Àr¹zÀ ¢£ÁAPÀzÀAzÀÄ C¼ÀvÉ PÉ®¸À ¤ªÀð»¸À¯ÁVzÀÄÝ
¥ÀæwªÁ¢UÀ¼ÁzÀ f. £ÁUÀgÁdÄ ©£ï ¯ÉÃmï ¥Á¥ÀtÚ ªÀÄvÀÄÛ «dAiÀĪÀÄä PÉÆÃA ©.
JA. PÀȵÉÚÃUËqÀgÀªÀgÀÄ £ÉÆÃnøï eÁj ªÀiÁrPÉÆArgÀĪÀÅ¢®è ºÁUÀÆ C¼ÀvÉ ªÉüÉ
¸ÀºÀ ºÁdjgÀĪÀÅ¢®è. C¼ÀvÉ §UÉÎ ºÉýPÉ ¥ÀqÉzÀÄ £ÉÆÃnøï£ÉÆA¢UÉ £ÀPÉë
vÀAiÀiÁj¹ PÀqÀvÀzÉÆA¢UÉ ®UÀwÛ¹zÀÄÝ, vÀªÀÄä CªÀUÁºÀ£ÉUÉ ¸À°è¹zÉ.
vÀªÀÄä «±Áé¹,
vÁ®ÆèPÀÄ ¸ÀªÉðAiÀÄgï/PÉÆÃmïð PÀ«ÄõÀ£Àgï
vÁ®ÆèPÀÄ PÀZÉÃj aAvÁªÀÄtÂ.
NC: 2024:KHC:8284
and he has also submitted a rough hand sketch and
mahazar with respect to the plaint schedule properties.
5. This appeal is admitted to consider the following
substantial question of law;
(1) Whether the Trial Court and the First Appellate
Court are justified in accepting the report of the
Taluka Surveyor, the Court commissioner who was
appointed to cause division of property only in
respect of item No.1 of the suit property which is
agricultural land in Sy.No.4/7 measuring 3 acres 7
guntas, wherein the said Court Commissioner has
filed mahazar and sketch only in respect of 3 acres
of land excluding 7 guntas of land with 3 structures
existing thereon?
(2) Whether the Trial Court and the First Appellate
Court are justified in appointing an advocate as a
Commissioner to conduct mahazar and survey and
cause division in respect of item No.2 of the suit
schedule property which consists of house property
and the vacant site in the light of provisions of
Section 54 of CPC?
NC: 2024:KHC:8284
6. Sri. Shivashankar K, learned counsel for the
appellant referring to the aforesaid documents submitted
that;
(a) That the Taluka Surveyor who was appointed as a
Court commissioner to divide the property in respect
of item No.1 of the suit schedule property, has
conducted the survey and mahazar only in respect of
3 acres of vacant agricultural land and has excluded
7 guntas of land in which three structures
measuring- (1) 621/2 X 22 ft. (2) 621/2 X 19 ft. and
(3) 26X46 ft., existing without any justifiable
reasons. Thus, he submits that exclusion of the said
extent of 7 guntas with structures existing thereon
from being divided and allotted to the shares of the
parties has not been taken into consideration by the
Trial Court as well as by the First Appellate Court.
(b) As regards the division of the property as made
by the Advocate Commissioner in respect of item
No.2 of the suit schedule property consisting of
NC: 2024:KHC:8284
house property measuring 45 X 261/2 ft., and vacant
site measuring 33 X 28 ft., learned counsel submitted
that the very appointment of an advocate as a Court
Commissioner to divide the house property which is
item No.2 of the suit schedule properties is erroneous
and contrary to provisions of Section 54 of CPC.
(c) That the said mahazar and report filed by the
Advocate Commissioner cannot be relied upon as the
same does not contain any detailed description as to
whom and how the portions have been allotted.
(d) Thus, he submits that the Trial Court and the
First Appellate Court without adverting to these
aspects of the matter have accepted the report of the
Taluka Surveyor as well as the Advocate
Commissioner contrary to the facts and the law
giving raise to the substantial question of law to be
considered at the hands of this Court and he submits
that substantial question of law be answered in
favour of the appellant.
NC: 2024:KHC:8284
7. Per contra, Sri. Gongi Reddy B.V, learned
counsel for the respondent No.1/plaintiff does not dispute
the fact that Taluka Surveyor who was appointed to divide
the item No.1 of the suit schedule property has surveyed
and filed the report only in respect of 3 acres of land and
had excluded 7 guntas of land consisting of three
structures.
(a) However, it is his submission that a Taluka
Surveyor can be appointed only in respect of vacant
land and as regards the property consisting of any
house or structure, Court is within its power and
jurisdiction to appoint anyone of its choice and as
such Trial Court has chosen to appoint an advocate
to divide the house property and who has submitted
the report and the same cannot be faulted with.
(b) He further refers to the Karnataka Amendment
to Section 54 of CPC to contend that the Karnataka
amended provision of Section 54 of CPC provides a
discretionary power to the Trial Court to appoint a
- 10 -
NC: 2024:KHC:8284
Commissioner of its choice and same is just in
accordance with law.
(c) He submits that substantial question of law
raised, be answered in favour of the
plaintiff/respondent No.1 and sought for dismissal of
the appeal.
8. Heard. Perused the records.
9. At this juncture it is necessary to note Section
54 of CPC as well as Karnataka Amendment to Section 54
of CPC, which read as under;
"54. Partition of estate or separation of share.-
Where the decree is for the partition of an undivided
estate assessed to the payment of revenue to the
Government, or for the separate possession of a share
of such an estate the partition of the estate or the
separation of the share shall be made by the
Collector or any gazetted subordinate of the Collector
deputed by him in this behalf, in accordance with the
law (if any) for the time being in force relating to the
partition, or the separate possession of shares, of
such estates".
Karnataka.- For section 54, substitute the
following section, namely:-
"54. Partition of estate or separation of share.-
Where the decree is for the partition of an undivided
estate assessed to the payment of revenue to the
Government or for the separate possession of a share
of such an estate, the partition of the estate or the
- 11 -
NC: 2024:KHC:8284
separation of the share of such an estate shall be made
by the Court in accordance with the law if any, for the
time being in force relating to the partition or the
separate possession of shares and if necessary on the
report of a revenue officer, not below the rank of
Tahsildar or such other person as the Court may
appoint as Commissioner in that behalf."
(Vide Karnataka Act 36 of 1998, Sec.2)
10. Perusal of the aforesaid provisions make it clear
that division of property in furtherance to a decree for
partition as per the original Section 54 of CPC has to be
done either by a Collector or any Gazetted subordinate of
the Collector deputed by him in this behalf. Karnataka
Amendment to Section 54 of CPC provides that the Court
has a discretionary power to appoint any officer who shall
not below the rank of Deputy Tahsildar. The said provision
do not provide for appointment of any advocate for the
purpose of division of the property subject matter of the
decree. Thus, there is considerable force in the submission
being made by the counsel for the appellant with regard to
the very process of appointing the advocate as a
Commissioner in furtherance to Section 54 of the CPC.
- 12 -
NC: 2024:KHC:8284
11. Further on a perusal of the mahazar and the
sketch submitted by the Taluka Surveyor, who was
appointed by the Trial Court for the purpose of division of
the property in respect of item No.1, it is clear that he has
excluded 7 guntas of land with structure existing thereon
out of 3 acres 7 guntas and has assigned no reason
whatsoever for such exclusion of 7 guntas of land with
structure thereon. There is no material on record to show
as to who is to conduct survey and measurement and
division in respect of said 7 guntas of land in which
admittedly three structures are existing. That apart the
sketch submitted by the Taluka Surveyor along with the
report further reveal that only the share in the property to
be allotted to the plaintiff has been carved out and shares
to be allotted to the other parties have been left
unattended. That such a perfunctory survey, measurement
and sketch cannot give quietus to the dispute between the
parties. Least the same would not satisfy the requirement
of law in giving effect to the preliminary decree.
- 13 -
NC: 2024:KHC:8284
12. Perusal of the report submitted by the Advocate
Commissioner along with the sketch would reveal that
same has been made on a guess work without any
application of mind with regard to measurement and
description of the share and mode of allotment. As already
noted very appointment of advocate as a Commissioner
under Section 54 of CPC is impermissible and therefore
reliance on such a report cannot be accepted.
13. The Trial Court and the First Appellate Court, in
the considered view of this Court have grossly erred in
accepting these survey, mahazar and sketches while
closing the Final Decree Proceedings.
14. The substantial question of law raised are
answered accordingly.
15. The order of the Trial Court and confirmed by
the First Appellate Court therefore requires to be set aside
and matter needs to be remitted to the Trial Court to
conduct the process of division of the property subject
- 14 -
NC: 2024:KHC:8284
matter of the suit strictly in accordance with provisions of
Section 54 of CPC by appointing the Officer named therein
and also shall ensure that the shares of the parties are
identified and allotted in the manner known to law.
16. At this juncture counsel for the respondent
No.1 vehemently submits that appellant herein has not
been cooperative in effecting the division of the property
by the Trial Court. He also submitted such appointment of
Commissioner and report ought to have been objected to
by appellant in the first instance and he deliberately
having kept quite shall not be given advantage of his own
folly. He submits that appellant be put to terms and time
be fixed for the purpose of completion of the process of
division of the property.
17. Submission is taken on record.
18. Since the parties are represented by their
learned counsel they shall appear before the FDP Court on
11.03.2024 without any further notice. Trial Court shall
proceed with Final Decree Proceedings from the stage of
- 15 -
NC: 2024:KHC:8284
appointment of Commissioner as provided under Section
54 of CPC and shall complete entire process within an
outer limit of six (6) months from the date of appearance
of parties as directed by this order. It is made clear that
parties shall cooperate in expeditious disposal of FDP
proceedings without seeking any adjournments.
With the above observations, appeal is allowed.
Sd/-
JUDGE
RU
